Senator FIERRAVANTI-WELLS (New South Wales) (13:48): The coalition will be supporting the Tobacco Plain Packaging Bill 2011 but will be opposing the Trademarks Amendment (Tobacco Plain Packaging) Bill 2011. There are about 15,000 tobacco and smoking related deaths in Australia each year and there are many more cases of illness and hospital admission. It is sensible public policy to take action to reduce rates of smok­ing, as noted by the opposition's support for the Tobacco Plain Packaging Bill. The Trademarks Amendment (Tobacco Plain Packaging) Bill, however, is not written to reduce rates of smoking. By the most gener­ous interpretation it is designed to enable the Minister for Health and Ageing to make regulations with respect to anything related to trademarks. By the least generous inter­pretation the bill would enable the minister to make regulations significantly contrary to the Trademarks Act 1995. Before I explain the opposition's support for the Tobacco Plain Packaging Bill and its opposition to the Trademarks Amendment (Tobacco Plain Packaging) Bill I must make mention of the Minister for Health and Ageing and her discussion of tobacco plain-packaging legislation.

While not discounting the public health benefits of reducing smoking, Ms Roxon has applied herself with incredible zeal to this task. Unfortunately, the zeal has sat uncom­fortably beside the hypocrisy of the health minister. Ms Roxon, it was revealed, had sent a fundraising request to a major tobacco company in 2005, the year after Labor banned tobacco company donations. This was just a year after the then Labor leader, Mark Latham, had banned the party from taking donations from tobacco companies. As recently as June 2011, New South Wales ALP secretary, Sam Dastyari, wrote to the same company, Philip Morris, offering a $5,000 place at a business dialogue and country business forum. It was deceitful of Minister Roxon to tell the public one thing and then do something completely opposite behind the scenes. The minister even failed to front up at the annual committee sessions in the other place to consider the govern­ment's budget bills in detail this year. This was obviously so that she could dodge questions about her attempts to solicit funding from the cigarette manufacturer Philip Morris in 2005. Her hypocrisy was to say one thing in public and then do something else.

The Gillard government protected the minister on 15 June when it refused to debate an opposition motion that the minister expl­ain to parliament why she publicly criticised tobacco company donations to political parties but privately sought their financial support. The minister has sought to politicise the issues surrounding plain packaging and tobacco control for her own political gain. The Minister for Health and Ageing has taken the attitude that if you do not agree with her 100 per cent then you must be in the pockets of tobacco companies. She has no proof other than her belief that this is so. What we now know is her own relationship with big tobacco was much closer and cosier than anyone ever realised. The minister has never fully disclosed the extent to which she was in the pockets of big tobacco. In a ministerial statement on 14 June 2011, Ms Roxon said:

… Big Tobacco will try and pull all sorts of tricks along the way to discredit me, discredit the policy or discredit the Government.

Well, Minister Roxon, the only thing big tobacco did was offer you tickets to the football and the tennis. They did not try to hide the minister's attendance. The minister did all that by herself.

Not everyone has been happy with the minister's stand. In April, on the ABC's Lateline program, Ms Roxon said that health warnings and graphic pictures would make up the majority of the olive green packaging. She said:

We've done a lot of research to ensure that we make the cigarette packs as unattractive as possible …

… … …

Apparently dark olive is the least attractive colour - olive green - for any smokers and particularly for young people.

Senator FIERRAVANTI-WELLS: I can just see you, Minister Evans, in olive green! The Australian Olive Association was outraged, as was reported by the Sydney Morning Herald online, and said the move would 'denigrate their brand and cost them money'. The report said:

Association chief executive Lisa Rowntree has sent a cease-and-desist letter to Health Minister Nicola Roxon, asking her to stop using the term ''olive green'' and instead adopt the term ''drab green''.

''Our members are having enough problems countering the flood of imported olive products being dumped in Australia via the large supermarket chains without the government promoting to the community that there is something negative about olive green,'' the letter says.

Ms Roxon reportedly said:

''I'd be happy to offer an (olive) branch to the association and support their bid for greater publicity.''

In her speech to the plenary session of the United Nations High-Level Meeting on Non-Communicable Diseases in New York recently, Minister Roxon extended that olive branch. She told the meeting:

From next year, all tobacco products are sold in Australia will be required to have the same packaging in an unattractive drab dark brown colour.

Here's hoping Cadbury are not offended!

The coalition has a proven track record with regard to tobacco control and reducing the rates of smoking in Australia. It was Robert Menzies who first introduced a voluntary tobacco advertising code for television in 1966. It was the Fraser Liberal government in 1976 that first implemented a ban on the advertising of tobacco products on TV and radio. Dr Wooldridge, in June 1997, announced what at the time was the biggest ever national advertising campaign against smoking, with a federal government spend of $7 million over two years. The Howard government reformed cigarette taxation from a weight basis to a per stick excise in 1999. It was the Howard govern­ment and Tony Abbott, as health minister, who introduced the graphic health warnings on tobacco products in 2006. It was the coalition which first proposed an increase in the tobacco excise in 2009, a measure later adopted by the government. The coalition presided over the biggest decline in smoking rates whilst in government, with the prevalence of smoking declining from 21.8 per cent in 1998 to 16.6 per cent of Australians over the age of 14 by 2007. This was amongst the lowest rates of smoking in the world. The decline in smoking rates in Australia—a fall of 40 per cent for men and 44 per cent for women between 1989 and 2007—was amongst the biggest in the OECD. The fall in smoking rates amongst women was the biggest in the OECD. So any suggestion that the coalition is soft on tobacco companies is just plain nonsense.

There is no silver bullet. There must be a comprehensive tobacco control strategy, and no one measure will work by itself. There have been concerns raised by stakeholders regarding the legality of this proposal, under three different avenues. The first is that it would constitute acquisition of property on other than just terms according to section 51 of the Australian Constitution and that it may violate article 20 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, the TRIPS agreement, which came into effect on 1 January 1995. This is a minimum standards agreement which allows members to provide more extensive protect­ion of intellectual property if they so wish. Members are left free to determine the appropriate method of implementing the provisions of the agreement within their own legal system and practice.

The second is as follows. The TRIPS agreement is an agreement made under the World Trade Organisation and is a multilat­eral agreement on intellectual property. Article 20 says:

The use of a trademark in the course of trade shall not be unjustifiably encumbered by special requirements …

There is, however, a health exception to the TRIPS agreement, and this is where the legal contention lies—that this legislation may violate the 1993 Australia-Hong Kong investment treaty, and Philip Morris may sue the Commonwealth over plain packaging under the expropriation and investor state dispute settlement provisions of the treaty. This was explained by Deborah Gleeson and David Legge of the School of Public Health and Human Biosciences at La Trobe Univer­sity. As they wrote in the Conversation on 7 July 2011:

Expropriation, in ordinary usage, means dispossessing property owners of their property. But it has a much broader meaning under trade law.

The government and the minister have on many occasions assured the opposition that the legal advice surrounding their plain packaging proposal is robust and that they are on strong legal ground. The coalition has accepted the government's assurance regard­ing this on face value. This is because the government have refused to provide a copy of their legal advice to the opposition. Despite this, proposed section 15 of the Tobacco Plain Packaging Bill provides that this bill would not apply to the extent that it would cause acquisition of property on other than just terms under section 51 of the Australian Constitution. This means that they must have some doubts as to the strength of their legal advice.

There is also a small retailer impact. The government's consultation with small business retailers over this issue has been lacking. Small retailers are concerned at the way the government's plain packaging proposal will impact their stock management and at their point of sale, with the difficulties in differentiating between packets that look almost identical.

There are also issues with counterfeit, illicit tobacco. While Australia is generally seen by its peers as a country which has a lower rate of illicit and counterfeit tobacco, there are some concerns that plain packaging may increase this rate. The Australian Customs and Border Protection Service annual report shows that over the past three years it has seized—